USPTO Hiring and Paying More for Administrative Judges

The USPTO’s new Patent Trial and Appeal Board is taking over a backlog of over 24,000 pending ex parte appeals. The Board has had some difficulty in hiring and retaining top administrative patent judges. One element of the America Invents Act is to boost the salary schedule of USPTO’s administrative judge so that it is only constrained by the USPTO Director’s salary schedule — currently $165,000. However, unlike the USPTO Director, Administrative Judges will also be eligible for overtime pay.

Director Kappos has announced his desire to hire 1,500 – 2,000 new examiners in the next year.

Thanks–I did try that search, but the search results didn’t match those input terms so I ended up with >2000 jobs to sort through, some of which were for nurses, etc. Using category of “administrative law judge” and keyword “patent” led to only 2 positions for bankruptcy judges. If they want people to apply I think they need to work on their search engine.

Why don’t you define “details at play”, sockie, and then perhaps I’ll find a cite that “captures the details at play in this new law.” Otherwise, why waste my time beating a dead horse? Your clowning on this topic has already earned you an egg-splattered face several times over. My guts need a break from the constant laughter at your expense.

What is included in such a statement?
What is not included in such a statement?

Plus, we don’t even get to the consideration that past examples of “the type of stuff people have been obtaining patents for since the biotech industry began” has no bearing on a the point-blank effect of the new law.

Does anyone else think practitioners will try to make textual arguments that the new subject matter bar denies isolated gene patents

I doubt it. What’s the argument?

Does anyone else think practitioners will try to make textual arguments that the new subject matter bar denies … any claim that in part claims the human body (for instance, the human blood in the Prometheus patent)?

First, the Prometheus patents do not claim “human blood” or any other part of a human body. Second, to the extent any claim effectively patents a part of a person’s body, it is certainly ineligible under 101. That’s the whole point of the new statute.

Do APJs have to live in D.C., or can they work remotely or “hotel”? Are there job postings somewhere? I would love to have a job that included being able to write, “the Examiner is REVERSED!” when appropriate, of course.

Looks like the AIA finally fixed this. APJs are now appointed by the Secretary, in consultation with the Director. See new 35 USC 6 in HR 1249.

But if I read the bill correctly, this constitutional fix won’t go into effect until 1 year after the bill was signed. I’m guessing Secretary Locke will then re-appoint all the APJs to firm up the constitutionality.

Were there any challenges to panels in the meantime? I only found one example that was brought up too late so the Fed. Cir. didn’t consider it.

It’s going to be fascinating to watch such a marked expansion of ALJs and the adjudicatory process at the administrative level. I’ve read through the bill a few times and I’m concerned that the Director doesn’t really have the authority post-Tafas to make rules that govern the new PTAB’s process. There are a lot of holes that still need to be filled in, and unless the PTO resorts to rulemaking-by-adjudication, I’m not sure it’s entirely constitutional for the director to do what he must—i.e., issue notice-and-comment rules that govern the more substantive elements of the new post-grant review. It will be interesting to see if the Federal Circuit grants them some sort of deference or leeway. Professor Miller had an excellent discussion of the substance/procedure divide (and how the courts are basically wrong) in a recent issue of the Administrative Law Review, the abstract of which can be accessed here: link to digitalcommons.wcl.american.edu

Equally interesting is whether the Federal Circuit and/or the DCC will allow the PTO’s “longstanding interpretation” of the new section 33 subject matter bar to stand or whether the new provision will breathe some new life into the plethora of 101 subject matter challenges like Myriad and Prometheus. Does anyone else think practitioners will try to make textual arguments that the new subject matter bar denies isolated gene patents, or for that matter, any claim that in part claims the human body (for instance, the human blood in the Prometheus patent)? For more on the latest slew of 101 challenges the Federal Circuit has rejected, see here: link to ipbrief.net.

I’m pretty sure that’s not how it works. If the salary of the Administrative Judges is “constrained” by the Director’s salary of $165,000, that means even with overtime, the maximum yearly pay would be $165,000.

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